Legislature(1999 - 2000)
03/29/2000 01:20 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 392 - CONTINUANCES OF CINA HEARINGS REPRESENTATIVE GREEN announced the next order of business would be HOUSE BILL NO. 392, "An Act relating to continuances for temporary placement hearings that follow emergency custody of a minor; and amending Rule 10, Alaska Child in Need of Aid Rules." The committee would be taking up CSHB 392(HES), version 1-LS1224\G. Number 1881 REPRESENTATIVE JIM WHITAKER, Alaska State Legislature, came before the committee as sponsor of the bill. He was joined at the table with staff, Lori Backes. This bill, he said, is relatively simple. The single largest complaint that his office receives is from parents or guardians in relation to the lack of time to understand the circumstances surrounding the 48-hour hearing, which determines whether a child is a "child in need of aid" (CINA). Yet there is a provision in statute for judges to explain the circumstances to those involved, but it has not worked as well as hoped. This bill, therefore, makes it very clear that a judge must explain to parents and/or guardians that they have the right to request a continuance. This is in no way an attempt to circumvent the efforts of the Division of Family and Youth Services [Department of Health & Social Services]. This is merely an assertion of the rights of parents and guardians to understand their rights, to give them time to think, and to get their act together. Number 1950 REPRESENTATIVE CROFT noted that the emergency custody provision remains intact. In that way, a parent or guardian would not get a child back during this period of time. REPRESENTATIVE WHITAKER affirmed that. Number 1961 REPRESENTATIVE ROKEBERG stated that the bill mandates that the hearing officer grant a continuance, but there don't seem to be any limitations placed on a continuance. How would that be handled? REPRESENTATIVE WHITAKER replied that the seven-day stipulation was removed in the House Health, Education and Social Services Committee because there is a need for leeway on the part of the hearing officer or judge. In that way, a hearing officer or judge could grant a limited continuance or a series of continuances. REPRESENTATIVE ROKEBERG asked Representative Whitaker whether these types of hearings typically take place in a court or before a hearing officer. REPRESENTATIVE WHITAKER replied, according to his understanding, that a hearing officer is used in most cases. Number 2030 REPRESENTATIVE ROKEBERG asked Representative Whitaker whether it is correct to say that a hearing officer "becomes the court" by way of statutory construction of the bill. REPRESENTATIVE WHITAKER replied that he doesn't believe that it changes the statute in that regard. He pointed out that the bill does not require a continuance. It simply requires that the hearing officer and/or judge inform the parent or guardian of the right to request a continuance. Upon a request, the hearing officer or judge then makes a determination as to whether it is a valid request. REPRESENTATIVE ROKEBERG asked Representative Whitaker whether a judge would have the discretion to set a follow-up hearing, for example. REPRESENTATIVE WHITAKER replied the hearing officer and/or judge would make a determination on whether or not to grant a continuance. REPRESENTATIVE ROKEBERG asked Representative Whitaker what happens after the granting of a continuance. REPRESENTATIVE WHITAKER replied that a time stipulation is placed on a continuance at the time it is granted. The bill is not an attempt to endlessly draw out the process. Judicial discretion is maintained. REPRESENTATIVE ROKEBERG commented that he is concerned about the practical implications of the bill in relation to the judicial process. Number 2108 REPRESENTATIVE GREEN asked Representative Whitaker whether the removal of the seven-day continuance was to allow for whatever might need to be done. He posed a scenario: "I'm a bad guy. I've been bad to my kids and I can't correct that in seven days, but, maybe, I can go to some sort of a head-knock session, and in 14 days I'll be clean." REPRESENTATIVE WHITAKER replied no, that was not the intent. The single largest complaint that he hears from individuals in these circumstances is that 48 hours isn't enough time to get over the confusion, anger and panic of what to do when the state takes action to protect the safety of a child. Generally speaking, these individuals are not in the most comfortable of situations, and this is a very rude awakening. The bill allows for these individuals to go to court and ask for a little time to get their act together. The bill requires that the court advise the parent or guardian of the right to request a continuance. In most cases, he noted, the individuals are not aware of the specific charges until the hearing. He also noted that these are individuals who are somewhat disenchanted with the so-called system to begin with, so this is a chance to extend an open hand to give them time to think. Number 2216 REPRESENTATIVE GREEN asked Representative Whitaker whether there is an upper limit for an extension. REPRESENTATIVE WHITAKER replied that it is fair to say that judicial discretion will rule the day. REPRESENTATIVE GREEN opened the meeting to public testimony. Number 2248 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. The agency supports the bill, he told members. A lot of what is set out in the bill is "kind of" done in practice now in the Anchorage courts and in most other areas throughout the state. A parent will come in, he explained, and want to have an attorney appointed to help the parent through the 48-hour temporary custody hearing. That is what allows the agency to get involved with the case. MR. McCUNE noted that in actuality continuances are for a few days, and are used to look at medical records, for example. Generally, a continuance is granted for about a day or at the most two days. In CINA cases, he explained, there is the initial 48-hour hearing and then an adjudication hearing, which is about 120 days later. It is important, therefore, for parents to understand where they are going and what needs to be done. He commented that this issue was discussed in detail in the House Health, Education and Social Services Committee, at which time it was decided not to put strict time limits on a continuance in order to allow for a lot of judicial discretion. Number 2354 REPRESENTATIVE GREEN asked Mr. McCune whether he was saying that removing the seven-day limit is really just an extension of a few days rather than an opened-ended limit. MR. McCUNE affirmed that. He said it is extremely rare to get as much as a seven-day continuance. Leeway is important because some cases might involve medical testimony, which requires checking the medical records and consulting with the family doctor. Those types of cases are rare, but they might require a ten-day continuance rather than a seven-day continuance, for example. It just didn't seem right, he said, to include a strict time limit. Normally, after reviewing the case, it is often decided that a family should stipulate temporary custody, especially in the case of serious abuse. The time is then spent trying to fix the problems. Number 2417 REPRESENTATIVE ROKEBERG pointed out that there isn't a fiscal note from the Public Defender Agency. He asked Mr. McCune whether it is typical for a public defender to be available at a 48-hour hearing or if one has to be contacted by the parents or guardians for counseling. MR. McCUNE said that is a good question. There is a bill, which recently passed the House of Representatives and is now in the Senate, that lets the Public Defender Agency get involved earlier in the process without an official appointment by the court. As it stands now, a parent or guardian goes through a financial screening before a court issues an order to appoint a public defender to the case. Mr. McCune further stated that there is a zero fiscal note from the Public Defender Agency because the language reads "may" be represented by the Public Defender Agency, which allows for some leeway. He reiterated that the bill codifies current practices, particularly in Anchorage, where about a half of the CINA cases are located. In most other areas of the state, the practice is to have a shortened continuance in order to talk to the parent or guardian to determine whether further investigation is needed. The agency doesn't expect much fiscal impact as a result of the bill. TAPE 00-41, SIDE B Number 0001 REPRESENTATIVE GREEN indicated that he is willing to take Mr. McCune's verbal input in relation to the zero fiscal note, but that it might help to submit one. He asked Mr. McCune whether a continuance would help to present a better case and more thorough review in the arena of fairness. MR. McCUNE affirmed that, adding that it would allow for the parent or guardian to consult with a lawyer, and it would expedite the process in a way. For example, the department wouldn't have to "put out" proof if probable cause is stipulated, which could save the court time and resources. REPRESENTATIVE GREEN, noting that there were no further testifiers, closed the meeting to public testimony. Number 0085 REPRESENTATIVE KERTTULA made a motion to move CSHB 392(HES), version 1-LS1224\G, out of committee with individual recommendations and attached fiscal notes. There being no objection, CSHB 392(HES) moved from the House Judiciary Standing Committee.
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